Paquette and Paquette (No.2)
[2008] FMCAfam 150
•21 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PAQUETTE & PAQUETTE (No.2) | [2008] FMCAfam 150 |
| FAMILY LAW – PRACTICE & PROCEDURE – Stay application – interim parenting orders requiring children to be returned to usual school/pre-school and giving equal time to each parent. |
| Family Law Act 1975 Family Law Rules 2004 |
| Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 Clemett & Clemett (1981) FLC 91-013 Doherty v Doherty (1996) FLC 92-652 EJK & TSL (No.2) [2006] FamCA 806 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Sampson & Hartnett [2007] FamCA 732 |
| Applicant: | MR PAQUETTE |
| Respondent: | MS PAQUETTE |
| File Number: | SYC 512 of 2008 |
| Judgment of: | Sexton FM |
| Hearing date: | 21 February 2008 |
| Date of Last Submission: | 21 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 21 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Schonell |
| Solicitors for the Applicant: | Barkus Edwards Doolan |
| Solicitors for the Respondent: | Russo & Partners |
ORDERS
The mother’s stay application be dismissed.
The father’s costs be reserved to final hearing.
IT IS NOTED that publication of this judgment under the pseudonym Paquette & Paquette is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 512 of 2008
| MR PAQUETTE |
Applicant
And
| MS PAQUETTE |
Respondent
REASONS FOR JUDGMENT
Introduction
On 20 February 2008, this court made interim parenting orders in relation to three (3) children, L, aged 10, T, aged 8 and R, aged 4. At the same time, the court published detailed reasons for its decision.
The court made 21 interim Orders and I do not find it necessary to read all of those Orders onto the record now. In summary, I ordered the parties to re-enrol L and T at S School at Mxxx, where L had been attending for three years and T since he started school, and to re-enrol R at C pre-school at Nxxx where she had completed one year of a three year programme. I ordered the parties to ensure the children re-commenced at that school/pre-school by Monday next week. Pending final Order, I ordered the children to live with the parties week and week about with changeover to occur on Sundays, and I gave the mother liberty to spend additional time with the children on two afternoons from after school until 7 p.m. in the week the children are living with the father, on certain conditions. Those conditions included that the children not be taken from the lower north shore on those afternoons, that the mother not remove things from the home without the father’s consent and that the father remain away from the matrimonial home so the mother could spend the afternoons at that home with the children.
On 21 February 2008 the mother made an application to stay those Orders. Specifically the mother sought a stay of Orders 1, 2, 3, 4, 5, 6, 7, 8, (the orders I have briefly summarised), Order 18 which provides for the parties to provide any necessary authorities to S School and C schools to ensure each party receives information from the schools about activities, school reports and the children’s progress. Unusually, the mother seeks a stay of Order 21 which is the order under s.65DA(2) of the Family Law Act 1975 concerning the particulars of obligations of the parties. It is difficult to see on what basis Order 21 is sought to be stayed as it is a requirement under the Act that those particulars are included in all parenting orders made by this Court and by the Family Court.
In relation to these proceedings, the mother relies on an Application in a case filed 21 February 2008 and an affidavit of Mr Salvatore Russo, her solicitor in the proceedings, sworn 20 February 2008. Mr Russo annexes to his affidavit an unfiled Notice of Appeal setting out 11 grounds of appeal. At the time of hearing this application, the Notice of Appeal had not been filed.
Mr Russo, for the mother, submits he and the mother’s counsel have not had sufficient time to prepare and file a Notice of Appeal, nor to give proper attention to the grounds of appeal to be relied on.
Rule 22.12 of the Family Law Rules 2004, which apply to this Court in these cases, provides that a party can only apply for a stay of orders if an appeal has been started, or a party has applied for leave to appeal. Although Mr Schonell for the father, said that this is technically a fundamental flaw in the mother’s case, he nevertheless made submissions in response to the mother’s stay application. I decided to hear the application, despite the applicant’s failure to comply with
Rule 22.12.
Relevant law
The authorities make clear the matters to which I must have regard when considering an application for a stay in a parenting matter. I refer in particular to the 1981 Full Court decision of Clemett & Clemett (1981) FLC 91-013 but there have been a number of recent Full Court authorities confirming the principles to be applied (EJK & TSL (No.2) [2006] FamCA 806; Sampson & Hartnett [2007] FamCA 732.)
The question of whether or not to grant a stay is a discretionary one. The authorities say a stay should not be ordered as a matter of right or as a matter of course. The NSW Court of Appeal in the 1985 decision of Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 discussed the principles relevant to the exercise of the discretion. The Court held that a court may grant a stay where the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of the discretion in his favour; it is not necessary that special or exceptional circumstances should be made out. The Court said that each case must be decided on its merits.
The onus is upon the applicant to demonstrate a proper basis for a stay.
The guiding principles in parenting matters are as follows:
a)Whether refusing a stay will render a successful appeal nugatory or make it impossible or impracticable to restore the position;
b)Any hardship that would be suffered by each party as a result of granting or refusing a stay;
c)The grounds and merits of the appeal;
d)Whether there has been a delay in applying for the stay;
e)The bona fides of the applicant for the stay;
f)The timing of the appeal; and
g)The best interests of the children are to be given at least significant consideration, if not paramount consideration (EJK & TSL (No.2) [2006] FamCA 806; Sampson & Hartnett [2007] FamCA 732.)
Whether refusing a stay will render a successful appeal nugatory or make it impossible or impracticable to restore the position
Mr Russo for the mother says refusing a stay will render a successful appeal nugatory or make it impracticable to restore the position. He says this will mean in effect that the children could not be returned to the Cxxx schools if the appeal were successful. Mr Schonell rejected this submission. He says the appeal if successful would not be rendered nugatory if the stay were refused.
This is a case where the children were settled at schools in Mxxx and Nxxx until the end of 2007 and the mother changed those long standing arrangements unilaterally in January 2008. The orders I have made put the children back in the position they were in at the end of 2007 as far as that is possible, given the parties have now separated and it follows they will spend less time with each parent. The court will be in a much better position at final hearing to determine what arrangements should be made on a final basis in relation to the children’s schooling and living arrangements. If the appeal court decides I was in error at this interim stage, it is true, that to once again move the children back to the Cxxx schools would be very hard for the children, but that will also be the case if the father is successful on final hearing in September and the stay were granted now. There is no evidence before me that the children could not in the future attend school in Cxxx if that is the result of the court’s final determination. In my view, the refusal of a stay does not render a successful appeal nugatory or make it impossible or impracticable to restore the position.
Any hardship that would be suffered by each party as a result of granting or refusing a stay
Mr Russo contends that if I refuse a stay his client, the mother will suffer hardship. He says the mother will be required to travel for one hour each way in the week when the children are with her, including an additional hour each way in the middle of the day, when R finishes pre-school. While I accept the mother will be required to travel an hour each way when the children are with her, twice a day, and make arrangements for R to be collected if the stay is refused, if the stay is granted, the father will be in exactly the same position. He would have to travel to and from Cxxx to spend time with the children in accordance with the Orders made. The mother is not presently in the workforce. She is available during the working week. The father is working full time, although with some flexibility. The mother says she has the support of her parents who can assist her with the children. I am not satisfied there will be less hardship for the father if I grant the stay, than hardship for the mother if I refuse the stay. I accept the situation will impose hardship on each party whatever order I make, and on the children, as I have said in my reasons for judgment.
The grounds and merits of the appeal
As already noted, the appeal notice has not been filed. The draft Notice annexed to Mr Russo’s affidavit, sets out 11 grounds of appeal.
Mr Russo’s first submission at hearing today was that there are serious problems with the implementation of the orders. He does not explain what these problems are except that the travel involved as a result of the orders will be onerous for the mother. As submitted by Mr Schonell for the father, I agree that serious problems with the implementation of the orders is not one of the grounds of appeal set out in the draft Notice.
The first ground of appeal in the draft Notice is that the orders appealed against, “are against the weight of evidence.” Mr Schonell submits an appeal court will view with considerable caution a ground of appeal based on the weight given to evidence, given the discretion given to the judicial officer at trial to assess weight. He refers to the authority of House v The King (1936) 55 CLR 499 at 504 to 505 where there Honours said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
He also refers to the decision of the High Court in Gronow v Gronow (1979) 144 CLR 513 at 519 to 520 where Stephen J said:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
Counsel also refers me to Baker J’s 1996 decision in Doherty v Doherty (1996) FLC 92-652 at 82,682 where his Honour says:
On the other hand, the exercise of discretion may be vitiated if a trial judge fails to give sufficient weight to a relevant factor. However, Stephen J as he then was in Gronow and Gronow … observed that, ''this ground of appeal needs to be viewed with considerable caution’’.
Mr Russo says I did not give sufficient weight to the evidence that the children were not adversely affected by attending a new school and pre-school. One of the difficulties in any interim case, and this case was no exception, is that there is only limited evidence before the court. I referred in my reasons and gave consideration to the very limited evidence available to me as to the children’s progress at the new school, which, contrary to Mr Russo’s submission, in fact was not all positive, but as the children had only been at the school for less than 2 weeks when the matter was heard, there could only have been limited evidence on this issue available. I also gave consideration to the evidence before me as to the two older children’s progress at S School to the end of 2007.
I agree with Mr Schonell it is clear from the authorities that an appeal court does not lightly overturn a trial court exercising its discretion as to the weight to be given to particular aspects of the evidence.
In relation to ground 2, I agree with Mr Schonell that this is not a ground of appeal, but a submission.
In relation to ground 3 which reads:
The learned Magistrate in paragraph 67 and 73 of the Reasons for Judgment applied the wrong test and/or misdirected herself as to the test to be applied.
At paragraph 67 I said this:
There is no evidence to suggest the children were not well settled in their school and pre-school until the end of 2007. In fact, the evidence is to the contrary. The school and pre-school are located in an area very familiar to the children, close to their home, to their father’s office, to their paternal grandparents and to their friends. They have been at their new school for less than three weeks. I have decided it is in the children’s best interests to return to S School and C Pre-School immediately upon their
re-enrolment. The question of where the children will attend school in the longer term will be decided at final hearing in September, if the parties are unable to reach agreement in the meantime.
Paragraph 73 reads:
I am satisfied the orders set out at the beginning of these Reasons are in the best interests of L, T and R.
I do not know what test I wrongly applied in these paragraphs and how I misdirected myself as to the test to be applied, as I did not apply a test in these paragraphs.
In relation to ground 4, I did not make my decision on the assumption the mother would be living in Nxxx or the vicinity of Nxxx. I made my decision on the basis of the mother’s advice to the Court that she intended staying at Cxxx. I have already dealt with the question of how an appeal court approaches grounds of appeal based on matters of weight.
In relation to ground 5, Mr Russo says the evidence does not support the granting of the injunctions in Orders 8(d) and 8(e). He submits that the mother’s liberty is at risk under this order because for example, if one of the children had an asthma attack when she was caring for them, she would be unable to travel to Rxxx to the child’s paediatrician without facing penalties on a contravention. I have wondered whether there is some misunderstanding on the mother’s side about this order.
I have ordered at Orders (5) and (6) that the children live with each party week and week about until final determination of the proceedings in September I took into account the amount of travel time involved for the children from Cxxx. I decided it was least disruptive for the children to have a full week in one place, near their school and pre-school, and therefore made orders which did not involve numbers of complicated changes between households. However, for reasons I gave in the Judgment I wanted to give the mother the option of spending additional time with the children in the father’s week, so that the children would not go too long without seeing her. Order (7) gives the mother “liberty” – there is no compulsion in this order. However, Order 8 sets out what will happen if the mother chooses to exercise that liberty. The basis of Order 8(d) is my finding about the onerous nature of the travel for the children. I did not want the children to be undertaking that trip on school days in the father’s week. However, if a child had an asthma attack, and the mother was unable to reach the father and she urgently needed to take the child to Rxxx, the court would consider (in the circumstances the father brought an application for contravention) whether the mother had a reasonable excuse for her actions. I am not aware of a case in which a mother suffered serious penalty on a contravention application for taking a sick child to a doctor in an emergency.
Order 8(e) is based on my finding that there was a verbal altercation between the parties in February when the mother came to the home to collect personal items without telling the father. Order 8(e) is included to ensure any potential for conflict in front of the children is minimised.
In relation to ground 6 which reads:
The learned Magistrate proceeded to make the finding in paragraph 61 of the Reasons for Judgment in terms “…I have not had the benefit of any independent expert advice, which will available [sic] to the Court at a final hearing…” notwithstanding sworn testimony of Ms D, psychologist, found in the Affidavit sworn by Ms D on 11 February, 2008 and read in the proceedings.
In paragraph 61, I am referring to the court ordered expert report available to the court at final hearing. Ms D, to whose evidence I had careful regard and from whose report I quoted in my reasons, was a witness for the mother. She was not an independent expert appointed by the court.
In relation to ground 7, Mr Schonell says this ground is based on an error of fact and a false assumption. That ground refers to paragraph 62 of my Reasons.
At paragraph 62 I say this:
It is regrettable that whatever Order I make in this case, at this interim stage, will adversely impact on the children, at least in the short term. Given the mother says she intends living in Cxxx, whatever orders I make about the children’s schooling and living arrangements, the children will be required to adjust to substantial and onerous travel between Cxxx and the lower north shore.
I am not clear as to the basis of the ground of appeal here.
In relation to ground 8 which reads:
The learned Magistrate erred in finding as a fact, “…the father has continued to financially support the children and has endeavoured to make arrangements for the mother and children satisfactorily to the mother to enable her to remain in the area near to the children’s usual schools…”
There was evidence before the court by way of correspondence tendered between the parties respective solicitors. That correspondence set out the father’s proposal to the mother to which I referred in the judgment at the passage referred to. The father offers financial assistance to the mother if she is living at the home or in rental accommodation near to the children’s schools. In addition, the mother in her affidavit, acknowledges having continued to have access to the parties’ joint funds since she has been at Cxxx. There was no application before the court in relation to financial matters.
In relation to ground 9 which reads, “That the appealed orders are vague and non-specific as to particular duties imposed on each party” I am satisfied the Orders I made in this matter on a interim basis set out specifically what each party is obliged to do.
In relation to ground 10, Mr Russo submits the mother was not accorded procedural fairness. He does not specify in what way the mother was not accorded procedural fairness. The chronology leading to today’s hearing was as follows. On 25 January the mother’s solicitor advised the father that she had enrolled the children at school in Cxxx, after the mother told the father on 22 January that the children would be attending their usual schools. The mother was aware the father opposed her decision to change the children’s schools. The father then filed an urgent application on 31 January when the Registrar did not grant leave for short service. On 4 February the matter came before me on an urgent basis by way of a Review of the Registrar’s decision. On that day, each party was represented by counsel. I ordered the parties to attend a child dispute conference, listed the matter for final hearing in September, ordered a family report for final hearing and given the nature of the matter, listed the matter for interim hearing on 13 February and I made directions for the filing of material for that interim hearing. As the parties did not resolve the issues between them at the child dispute conference, I heard the father’s interim application on 13 February. The mother’s material was filed late, but nevertheless I read that material for the interim hearing. I advised the parties I would give a decision the following week and delivered judgment on
20 February. As already noted, Mr Johnson who appeared for the mother at the time of the delivery of the Orders, said, after hearing the orders, but before reading my published Reasons, he wished to apply for a stay on behalf of the mother. That they were his instructions. Given the orders I had made provided for the children to start at their former schools on Monday next week, to minimise their time away from those schools, I listed the stay application today at midday and made directions for the applicant to file an application for a stay by 10 a.m. today. While I accept the timetable was tight between the delivery of judgment and the hearing of this stay application, I am satisfied the timing was appropriate given the nature of the matter. I am not persuaded the mother was not accorded procedural fairness.
In relation to ground 11 which reads, “That the learned Magistrate failed to give proper and/or adequate reasons” I gave careful consideration to all the evidence and the submissions of both Counsel at hearing and delivered extensive reasons for decision. Mr Russo does not specify in what way my reasons are not proper or adequate.
Whether there has been a delay in applying for the stay
Certainly, there has been no delay in the mother filing the application for a stay.
The bona fides of the applicant for the stay
When I made orders at approximately 4.15p.m. yesterday, I published extensive reasons for my decision. Mr Johnson of Counsel appeared and advised the court he sought a stay of the orders on behalf of the mother. Mr Johnson had not considered my reasons for decision at the time he sought the stay. In my view, this approach does raise a question about the applicant’s bona fides. A party must appeal a decision before applying for a stay. As there is no appeal de novo from a decision of this court, I would have thought usual practice would require a party’s legal representative to at least consider the court’s reasons for decision before deciding whether an error of law had been made and an appeal well based. That did not happen in this case. Apart from this matter, I cannot make a finding as to this factor.
The timing of the appeal
Mr Russo tells the court he has made some inquiries and has been told the appeal should be determined “within a reasonable time” but gives no indication as to when that is likely to be. It is difficult for the court to take this factor properly into account without specific evidence as to when an appeal is likely to be heard. I do not know when this appeal is likely to be heard. I do not know whether this appeal would be heard before the final hearing of this matter is heard in September of this year.
Best interests of the children
Mr Russo argues that I have punished the mother, rather than focussing on the best interests of the children. As noted by Mr Schonell, there is no specific ground of appeal in relation to this submission.
I have given extensive reasons as to why I decided it is in the children’s best interests to be returned to the schools they have attended for the last three years and to spend every second week living in Nxxx. As I said at paragraphs 62 to 67 of my reasons, I weighed carefully the factors for and against leaving the children at their new school and pre-school or moving them back to their north shore school and pre-school. I said that whatever Order I made would adversely impact on the children at least in the short term. I said whatever Orders I made the children would be required to adjust to substantial and onerous travel between Cxxx and the lower north shore, because of the mother’s decision to live in Cxxx.
Mr Russo argues that it is not in the best interests of these three children to be returned to the schools they attended until the end of last year. He says it will require too much travel for the children. However, on the mother’s own application, the amount of travelling involved for the children will be much the same as the travelling required as a result of the Orders I have made. This is simply because of the distance now between the parties.
If I were to grant the stay, and leave the children at school in Cxxx, and later order the children return to school in Mxxx and Nxxx, this would be, in my view, an even greater adjustment for the children, who would by then have made new friends, and established new routines at Cxxx. It would be difficult at final hearing to make the change. At this stage, the children would have been at their new schools only 3 weeks, and I am satisfied the adjustment will be much easier than if a much longer time passes. I was unable to determine at an interim stage the arrangements which will promote the children’s best interests in the long term.
Conclusion
The question of whether to grant a stay is a discretionary one. As I have already said, the onus is on the Applicant to demonstrate a proper basis for a stay.
The Full Court in Clemett said it may be appropriate for a court to grant a stay for a short period where the appeal appears to be based on substantial grounds and is not merely a delaying tactic, where the appeal can be dealt with within a reasonable time, and the present circumstance of the children are satisfactory.
On balance, having regard to the matters I have dealt with in these reasons, I am not satisfied the circumstances in this case warrant a stay being granted
I therefore dismiss the mother’s application.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Skye Owen
Date: 25 February 2008
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